Delhi HC had ruled that agirl, now nine and who was allegedly raped
in 2007, was unfit to be awitness on account of her age

A NINE- YEAR- OLD rape victim, found unfit to be a witness on
account of her tender age in the initial stage of the trial three years
ago, has approached the Supreme Court for a second chance after
attaining some degree of maturity. This could ultimately set a precedent
for trial in child rape cases.

Baby Stuti ( name changed), who was allegedly raped at the age of
five- and- a- half years, moved the apex court after the Delhi High
Court held that the victim -- who was found to be incapable of giving
rational answers when examined at the age of six -- could not be re-
summoned by the court for recording her statement at a later stage of
the trial.

Taking note of the importance of the matter, a bench presided over
by Justice Markandey Katju issued notice on the petition moved by the
minor through her father. The outcome of the case would be of great
significance as the statement of a victim is crucial in a case of rape.

Stuti, who was allegedly raped on January 29, 2007, was first put
up as a witness by the prosecution about eight months after the incident
but the trial court discharged her as a witness after it found that she
did not understand questions and was unable to answer whether she should
speak the truth or lie in court.

However, on an application by the prosecution at a later stage, the
trial court on January 21 this year directed Stuti to be summoned for
her examination in the case.

Brushing aside objections by accused Hari Prasad Meena, the trial
judge, observed that the court's endeavour was to reach the truth.
She said the fact that the victim was found incapable of disposing at an
earlier stage did not come in way of recording her statement at a
subsequent stage.

Taking note of the argument that the victim could be tutored, the
trial judge said the examination of the victim would not prejudice the
accused as he would have ample opportunity to cross- examine her.
Besides, the question of tutoring could be raised at an appropriate
stage, she added.

Aggrieved with the decision, Meena approached the high court in
appeal.

Setting aside the trial court order, Justice S. N. Dhingra said
once a child was declared unfit to be a witness because of immaturity,
re- summoning the same child witness after " she becomes little
more mature, is fraught with dangers since the child witness can be
tutored by the parents or by the investigating officer to depose in a
particular fashion". " She was found incapable of deposing by
ASJ ( additional sessions judge) in September, 2007, now summoning the
child wit- ness, in fact, would amount to summoning a tutored
witness," Justice Dhingra said.

He, however, did not elaborate as to how her case was different
from a girl of her age -- equally susceptible to tutoring -- deposing in
a case for the first time.

Justice Dhingra also brushed aside the contention that
crossexamination was an important tool in the hands of the accused to
expose tutoring of child witnesses.

" No doubt, the tool of cross examination is available with
the defence to test the veracity of deposition of every witness, but,
the issue is whether such a witness can be permitted under law to be re-
summoned or not.

I consider that the answer is in negative," Justice Dhingra
said in his judgment on September 21.

Talking about the present case, he said the child was summoned to
the court after about 8 months of the alleged incident, but she was not
examined as a

witness because she was not able to make the distinction between a
truth and a lie.

" If the child who has now grown to 9 years of age is asked to
depose, it is obvious that this deposition of the child would not be
natural but would be one tutored to her," Justice Dhingra said.

ON A QUEST FOR JUSTICE

JANUARY 29, 2007: The fiveand- a- half- year- old girl is allegedly
raped

SEPTEMBER 22: The victim, now six, appears before the trial court
to depose but is found to be incoherent and unfit to be a witness

JANUARY 21, 2010: With most witnesses having been examined, the
trial court resummons the victim, who had turned nine, for deposition

SEPTEMBER 21: High court sets aside the order re- summoning the
victim

NOVEMBER 12: Supreme Court issues notice on a petition by the
victim challenging the high court order

LEGALSPEAK

Section 118 of the Indian Evidence Act bars a person who is unable
to understand questions or give rational answers because of tender age,
extreme old age, disease or any other cause from deposing as a witness

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